Naryanan and Others vs Raman

Subramonia Iyer, J.—This Civil Revision petition was disposed of on ''Kanni'' 29, 1124 by a Full Bench of the erstwhile Cochin High Court consisting of Sri C.V. Ananthakrishna Iyer, C.J., and Govinda Menon and Paul Mampilli, JJ. The Civil Miscellaneous Petition which is. an application for review of that judgment was presented before the same High Court on ''Makaram'' 21,1124. As Govinda Menon, J. was then on other duty, the Chief Justice and Mampilli J. heard the petition and ordered notice to issue on ''Kumbhom'' 17, 1124.

The two States of Travancore and Cochin were united and formed one state as from the 1st day of July, 1949 - 17th day of ''Mithunam'' 1124, with a common Executive, Legislature and Judiciary pursuant to the Covenant entered into by the Rulers of the two States with the concurrence of the Government of India. In exercise of the powers conferred by, Art, 11 of the Covenant, H.H. the Raj Pramukh promulgated the United State of Travancore and Cochin Administration and Application of Laws Ordinance, 1 of 1124 providing by Sections 3(1) and 4(1) that:

(1) Subject to the provisions of this Ordinance, the existing laws of Travancore shall, until altered, amended or repealed by competent authority, continue to be in force ''mutatis mutandis'' in that portion of the territories of the United'' State which before the appointed day formed the territory of the State of Travancore.

(1) Subject to the provisions of this Ordinance, the existing laws of Cochin shall, until altered, amended or repealed by competent authority, continue to be in force ''mutatis mutandis'' in that portion of the territories of the United State which before the appointed day formed the territory of the State of Cochin.

The second Ordinance was the United State of Travancore and Cochin High Court Ordinance, II of 1124 which came into force on the 7th day of July 1949 corresponding to the 23rd day of ''Mithunam'' 1124 M.E. (Section 3) Sections 5, 6, 7 and 8 whereof are as follows:

There shall be a High Court of Judicature for the United State of Travancore and Cochin.

The High Court of Judicature of the United State of Travancore and Cochin, hereinafter in this Ordinance referred to as the High Court, shall be a Court of record and shall sit at Ernakulam.

The High Court shall consist of a Chief Justice and of such number of other Judges not less than five as the Raj Pramukh may, from time to time, appoint.

All proceedings commenced prior to the coming into force of this Ordinance in either of the High Courts of Travancore and Cochin, hereinafter in this Ordinance referred to as the existing High Courts, shall be continued and depend in the High Court as if they had commenced in the High Court after such date.

Any order made by either of the existing High Courts in any such proceedings as aforesaid shall, for all purposes, have effect not only as an order of that Court, but also as an order made by the High Court.

Ananthakrishna Iyer, C.J. retired on Mithunam 16, and Mampilli J. ceased to be attached to the Court by Mithunam 23, 1124. The remaining two Judges of that Court, Koshi, J. Temporary Chief Justice and Govinda Menon, J. who rejoined duty in Edavam 1124, became Judges of this Court.

After service of notices upon the Respondents, the application for review at its second stage came up before Koshi, J. (as he then was) and Govinda Menon, J. on ''Chingom'' 15, 1125 when they referred the case to a Full Bench as it involved an important question of the interpretation of the Cochin Thiyya Act, 8 of 1107, the statute law governing ''Marumakkathayee Ezhavas'' and it was thought that their decision in S.A. 181/1 22 - ''Mariam v. Karambi'' 39 Cochin 592 (A) which was the only other case on the point, might require reconsideration.

Sri Komattil Achutha Menon, appearing for the Respondents in the review relied upon the non-participation of Govinda Menon, J. who was a party to the decree, at the first stage of the review as a bar to our considering it. In our judgment, there is no point in the objection because, within three days after the judgment, Govinda Menon, J. left the Court on other duty and was thus away till 9th ''Edavom'' 1124 when that other duty happened to terminate enabling his return. He was thus not available to hear the review at its earlier stage, nor could he hear it at this stage, being on leave preparatory to retirement. He has since retired. He was, therefore precluded by absence and or other cause for the requisite period from considering the decree to which the application relates, and the remaining two Judges who heard the application at its first stage were alone entitled to do so, then, and we are entitled to hear the same at its later stage now, under1 the provisions containing in Rule 5 of Order 47, Code of Civil Procedure.

The ground on which a review of judgment is sought is a point the decision on which would determine the revision petition as well. If there is no ground for review, the application therefore would be rejected. Should, however, the application for review be granted, the revision should be dismissed. There was, therefore, no occasion for a second stage in the hearing of the review de-ferring consideration of the revision to Anr. or later stage and the whole matter was finally heard by us.

The suit, the order in which led to the revision petition was O.S. 151 of 1120 of the Anjikai-mal District Court, filed by the son and three daughters (as plfts 1 to 4) and the widow (as the 5th Plaintiff) of Kavanel Ayyappan Krishnan, a ''Ma-rumakkathayee Ezhava'' in the erstwhile State of Cochin, who died in the year 1099. Krishnan''s mother, two brOrs. and three sisters survived him. One of the brOrs. (Kesavan) died issueless in the year 1111. The mother (Ithamma) died in 1112. The surviving brother and the three sisters of the deceased Krishnan are Defendants 1 to 4 respectively. The suit was for partition of the properties of the ''tarwad'' (or ''tavazhi'') of which Krishnan, his mother, brOrs. and sisters were the only members. The claim was based on the Cochin Thiyya Act, 8 of 1107.

The Plaintiffs'' right to any share and the maintainability of the suit having been disputed, the question: "Are the Plaintiffs entitled to partition and is the suit maintainable?" (Issue 10) was taken up for consideration as a preliminary issue by the District Judge who recorded a finding in Plaintiffs'' favour. Two C.R.Ps. Nos. 93 and 94 of 1123 were filed in the Cochin High Court by Defendants 1 and 4 respectively. The two revision petitions were heard by a Full Bench. All the three Judges concurred in their view against the Plaintiffs'' right ''to a share and the sustainability of the suit for partition. The Civil Revision Petitions were therefore allowed and the suit dismissed so far as the original Plaintiffs were concerned. The proceedings, however, did not thereby terminate because the prayer, made by Defendant 4 i.e., the Petitioner in C.R.P. 94/1123 for transposition was allowed and she was permitted to continue the suit as sole Plaintiff instead of the original Plaintiffs. The decision of the Full Bench in C.R.P. 93/23 is - ''Raman v. Narayanan'' 40 Cochin 83 (B).

The true interpretation of Act 8 of 1107 (Cochin) as regards its operation and effect on the members and properties of an ''Ezhava Marumak-kathayam tarwad'' is the question that arises for determination.

''Marumakkathayam'' is customary law whose main features are the following:

A ''Marumakkathayam tarwad'' is a natural unit consisting of a woman, her children and descendants in the female line. Except when a member or members is or are brought into the ''tarwad'' by adoption no other person outside the natural unit can be a member of the tarwad and except at a partition which is permitted by the consensus of all the members, where the divided branches may not each satisfy the above definition, a tarwad'' must comprise every member1, of that natural unit. Take even one out of that unit away, and the rest will not and cannot constituting a ''tarwad''. See - Machikandi Parkum Maramittath Tharuvil Mootha Chettiam Veettil Chakkara Kannan Vs. Varayalankandi Kunhi Pokker and Others, , - (Kypreth) Moithiyan Kutti Vs. (Natukandy) Puthiapurayil Mammali and Others, Devaki Amma v. Kunju Nair'' 36 Cochin 937 (F.B.) (E) and - ''Kallinikutti Amma v. Devaki Amma'' 1950 Ker L.T. 705 (F.B.) (F).

Every woman in a ''tarwad'' is a stock of descent and herself, her children and descendants in the female line constitute a ''tavazhi or sub-''tarwad. There is community of property between the members of a ''tarwad'' or ''tavazhi'' and their status is that of joint tenants. If a member dies, the survivors hold the properties and a new-born becomes equally entitled with the existing members. The property of the ''tarwad'' belongs to the members thereof for the time being. No member has a separate alienable, attachable or divisible interest in the property. A ''tavazhi'' (or a sub-''tarwad'') can be an independent unit inside the ''tarwad'' holding properties of its own with the incidents of ''tarwad'' property in which the members of the ''tavazhi'' alone are interested.

The eldest male member would be the ''Karnavan'' of the tarwad and in default of an adult male, the eldest female would be the ''karnavasthree'' except in cases where by custom in particular families the eldest woman would be the Karnavasthree'' even when there are adult male members. The ''Karnavan'' or ''Karnavasthree'' is entitled to be in possession of, to manage and to deal with all the properties of the tarwad. Besides, this temporal authority, the kamavan has a spiritual authority in that he is entitled to conduct and preside over the religious ceremonies in the tarwad. Mismanagement by a kamavan would entail his removal from management by a decree of Court, which however would deprive him only of his temporal authority but not of his spiritual or religious powers which inhere in him on account of his earlier birth and which can be exercised by him so long as he adheres to the rules of the caste.

If, on account of departure from such rules, he forfeits his spiritual or religious powers, he forfeits his temporal powers in the matter of management of property as well, though he may not lose his proprietary rights as a member. See - ''Ravunny Mannadi Nayar v. Sankunny Valiya Mannadi Nayar'' 35 Cochin L.R. 645 (F.B.) at pp. 651-652 (G); -''Selina Lydia v. Govinda Ayyappan'' 4 Trav L R 12 (P.B.) (H) and - ''Sundara Ayyar (Sundara Ayyar''s Malabar and Alia Santhana Law p. 25). A karnavan is the legal guardian of the minor members of the tarwad (Sundara Ayyar pages 38-39).

Marital union was called ''sambandham'' and was not regarded as a legally valid or recognised marriage leading to any rights, liabilities or disabilities - see -''Subbu Hegadi v. Tongu'' 4 Mad H C R 196 (I); -''Koraga v. The Queen'' 6 Mad 374 (J); -''Kunhunni v. Itti Amma'' 19 Cochin 208 (K) - ''Anuloma'' was permitted but prethiloma'' was not being recognised even as between sub castes. In -''Lakshmikutty v. Parukutty'' 10 Cochin 468 (F.B.) (L), a Marar Woman who was the karnavashtree was removed from Kyaryam on account of her having contracted sambandham with a Nair male belonging to a sub-caste which; was supposed to be inferior to that of the Marar. Divorce was free and frequent.

Acquisition and ownership of separate property was possible for any member. The acquirer had the right to deal with his property ''inter vivos''. Testamentary capacity regarding separate property was questioned though it was most often upheld. See -''Alami v. Komu'' 12 Mad 126 (M); -''Kutty Assan v. Mayan'' 14 Mad 495 (N), and -''Achutan Nayar v. Cheriotti Nayar'' 22 Mad 9 (O). An intestate''s property devolved on the ''thavazhi'' according to one view and on the tarwad according to Anr. view. There was no uniformity in this regard (Sundara Ayyar p. 189). The Travancore Wills Regulation VI of 1074 which was passed after -'' 22 Mad 9 (O)'', by Section 6 provided that:

No bequest made by a Marumakkathayam Hindu having near relations shall take effect as against such relations to a larger extent than one half of the self-acquired and separate property possessed by the testator or testatrix at the time of his or her death.

This was repealed by Section 18 of the Nair Act, 1 of 1088 (Travancore) which enabled a Nair to dispose of the whole of his or her self-acquired or separate property.

Marumakkathayam is so called as under that system devolution of a man''s property on intestacy is not on his children, in which case it would be ''Makkal Dayam'' but on the children of Ors. , that is, ''maru makkal''. A constant conflict of interest and duty is inevitable in the system. Enlightened opinion though of a minority succeeded in enlisting legislative interference. The first was in the matter of marriage so as to raise it to the status of a legal relationship with rights and liabilities, as it is on the institution of marriage that the social structure mainly rests. The Malabar Marriage Act, 4 of 1896 was brought into the statute book sponsored by Sir T. Muthuswamy Iyer, President of the Commission appointed in that behalf.

Under that Act, "Sambandham" that is, an alliance between a man and woman by reason of which they, in accordance with the custom of the community to which they belong or either of them belongs, cohabit or intend to cohabit as husband and wife, when registered under the provisions thereof would be a legal marriage, with the attendant consequences of the right of the wife and children to be maintained by the husband or father as the case may be, the right of the husband or father to be the guardian of his minor wife and children, except as regards the property of their tarwad and for devolution of his separate property in part on his wife and children, for all of which among Ors. , provisions were made in the Act. Divorce was permitted and the conditions therefore were prescribed. To satisfy conservative opinion the Act made resort to its provisions optional and not obligatory. The Malabar Wills Act, 1898, followed, declaring the right to execute Wills and providing for several matters connected therewith.

To Travancore, Nair Act 1 of 1088 is the earliest legislative measure in this direction. It provided by Section 3, that:

The conjugal union of a Nair female, subject to the restrictions of consanguinity and affinity with (i) a Nair female, or (ii) any male, other than a Nair, with whom conjugal union is permitted according to recognised social custom and usage, openly solemnized by the presentation of cloth to the female by the male, whether so solemnized before the date on which this Regulation comes into force and subsisting on such date, or so solemnized after this Regulation comes into force, shall be deemed to be a valid marriage for all legal purposes.

Provided that, in conjugal unions so solemnized after the date on which this Regulation comes into force, in the case of a male who has not completed eighteen years of age, or of a female who has not completed sixteen years of age such conjugal union shall not be deemed to be a valid marriage unless it takes place with the consent of his or her legal guardian.

It provided also for the guardianship of the husband or father over his minor wife and children; and for intestate succession of a part of his self-acquired or separate property on his wife and children. It however provided only for certain departments of, the law, leaving the rest to be governed by custom. This Act was repealed and re-enacted by Nair Act, 2 of 1100. The provision regarding marriage in Act 2 of 1100 is the same as that in the earlier Act. Provisions relating to guardianship, testamentary and intestate succession are similar. The subject of partition which was not in the earlier Act was introduced in this Act. Individual partition for an adult member was permitted subject to certain restrictions. The operation of the existing rules of Marumak kathayam law, custom or usage except to the extent expressly provided for in the Act was reserved (Section 44).

Legislative interference in Cochin was only in the year 1095 by the Cochin Nair Act 13 of 1095. The provisions regarding marriage, maintenance and guardianship, inheritance and intestate succession, tarwad and its management, are almost the same as in the Travancore Act. As regards partition, the provision in the Cochin Act is different from that in its counterpart in Travancore, as under the Cochin Act, partition was allowed to tavazhies and not to individual members. In the absence of the common ancestress or with her consent during her lifetime, partition was provided for even within a thavazhi in which event, every male member and females without issue would, by themselves, constitute tavazhies for purposes of partition. Provisions were made in the Cochin Act for adoption for the purpose of perpetuating the family. This Act was repealed and the law re-enacted By Cochin Act 29 of 1113, according to which, individual partition was permitted. Provisions similar to the ones contained in the earlier Act as regards marriage, maintenance and guardianship, both kinds of succession and other matters were made in the new Act.

These Acts govern only Nairs who form one of the various communities following the Marumakkathayam system of law. There were two classes of Ezhavas in the Cochin area as elsewhere, one following Marumakkathayam law, and the other Makkathayam law. The Cochin Thiyya Act, 8 of 1107 applies to the first class and the Cochin Makkathayam Thiyya Act, 17 of 1115 to the second. As regards the communities following Marumakkathayam law other than Nairs and Ezhavas, the Cochin Marumakkathayam Act 29 of 1113 was passed with provisions similar to those contained in the Cochin Nair Act, 13 of 1905. There were yet other communities among Hindus and some non-Hindus, i.e. Muslims following the Marumakkathayam system, and Cochin Act 23 of 1113 was enacted as regards all Maru makkathayees domiciled in Cochin not governed by statute law. This Act legalised conjugal union by Section 3 of a Marumakkathayee female with a Marumakkathayee or Makkathayee male only if such union is permitted according to social custom and usage.

The Travancore Ezhava Act 3 of 1100 amended by Act 2 of 1101 applies to Ezhavas of that area other than those who followed Makkathayam with liberty reserved to the State to extend its operation to Ezhavas who followed Makkathayam law. Section 5 of the Act reads thus:

The conjugal union of an Ezhava male, subject to the restrictions of consanguinity and affinity with an Ezhuva female, openly solemnized by the presentation of cloth to, or by tying mangalyasuthram, around the neck of the female by the male, whether so solemnized before the date on which this Regulation comes into force and subsisting on such date or so solemnized after this Regulation comes into force, shall be deemed to be a valid marriage for all legal purposes.

Provisions regarding maintenance, guardianship, intestate and testamentary succession were made in the Act besides provisions for the management of the tarwad. Tavazhi partition was permitted.

The Madras Marumakkathayam Act 22 of 1933 which by Section 2 repealed the Malabar Marriage Act of 1896 in so far as it is applicable to Hindus following the Marumakkathayam Law, enacted by Section 4 that:

(1) Save as provided in Section 5, the conjugal union of a Marumakkathayi female with.

(i) a male belonging to the same community as such female, or

(ii) a male not belonging to such community and whether a Marumakkathayi or not shall be deemed for all purposes to be a legal marriage if.

(a) the parties to the union are not related to each other in such degree of consanguinity or affinity that conjugal union between them is prohibited by any custom or usage of the community to which they belong or either of them belongs; and

(b) the union x x x x

(The rest of the section relates to solemnization and registration of marriage and Section 5 prohibits polygamy).

Provisions as for maintenance and guardianship, intestate aid testamentary succession, the tarwad and its management are made in this Act. Partition was permitted to tavazhi. On change of religion, a member may claim or be compelled to divide from the tarwad. (Section 39). Provisions for the creation and continuance of impartible tarwads are made in this Act as in the aforesaid Acts, in Travancore and Cochin.

As regards Muslims in the State of Madras following the Marumakkathayam system of inheritance the Mappilla Succession Act, 1 of 1918 enacted that intestate succession to property other than tarwad property unless the intestate is exclusively entitled thereto shall, notwithstanding any custom to the contrary, be according to Mohamadan Law. The Mappilla Wills Act 7 of 1928 and the Mappilla Marumakkathayam Act 17 of 1939 followed, the last of which regulated family management, partition and succession. There is no provision regarding marriage in this Act.

Polygamy and Polyandry which lingered among some of the communities following the Marumakkathayam system of inheritance and which were fast disappearing (Sundara Ayyar pages 202-203. Malabar Law and Custom by Lewis Moore pp. 56,58.) were prohibited by the Legislature in the aforesaid enactments according as the one, the other or both prevailed among the particular community.

The Cochin Thiyya Act 8 of 1107 was enacted in the aforesaid setting and its provisions must now be scrutinised against that background. The Act consists of 35 sections in 5 chapters, the last chapter 5 headed "Property of Marumakkathayam tarwad" consisting of but one section, namely, the 35th and the last, which reads as follows:

The property of a Marumakkathayam tarwad will be considered to have been the property of the nearest common ancestress and to have descended according to the rules of succession contained in Chapter IV and to be partible among the persons so entitled.

The first chapter contains 4 sections, the first provides that.

This Act may be called "The Cochin Thiyya Act 8 of 1107" and it shall come into force at once;

the second that.

It shall apply to all Thiyyas domiciled in Cochin other than those who follow Makkathayam and to such Thiyyas or Ors. whether so domiciled or not, as have or shall have marital relation with them;

and the third that.

Nothing in this Act shall confer any right'' on the parties to a marriage dissolved before this Act comes into force.

The 4th section gives definitions of three terms, ''Thiyya'', ''kindred'' and ''Male''. The word ''kindred'' is defined as a connection or relation of persons descended from the same stock or common ancestor. A table of kindred is given in the schedule to the Act. Chapter II contains 8 sections, 5th to 12th, both inclusive. The 5th section provides that.

The conjugal union of a Thiyya male or female with a Thiyya or other female or male, subject to the restrictions of consanguinity and affinity, openly solemnized before the date on which this Act comes into force, and subsisting on such date, or so solemnized after the date on which this Act comes into force shall be deemed to be a valid marriage for all legal purposes:

Provided that no conjugal union, solemnized, after the date on which this Act comes into force, shall in the case of a male who has not completed 18 years of age or of a female who has not completed 14 years of age, be deemed to be a legally valid marriage.

Conjugal union may be openly solemnized in any of the following ways:

(a) by the tying of the Mangalyasutram.

(b) by the presentation of cloth to the female by the male.

(c) by exchange of rings.

(d) by mutual garlanding, and

(e) by mutual consent evidenced by a registered instrument attested by not less than two witnesses.

The next section renders any subsequent marriage during the continuance of a prior marriage, void. Section 7 to 11 provide for dissolution of marriage. Clause (1) of Section 7 enacts that marriage is dissolved by the death of either party. The 12th section provides that.

No Court shall entertain a suit for restitution of conjugal rights or for judicial separation between parties.

Chapter III contains 3 sections which read thus:

The wife and minor children, except married daughters under the guardianship of the husbands, shall be entitled to be maintained by the husband or the father as the case may be: Provided that the wife shall not be entitled to maintenance if she refuses to live with the husband without just cause.

The husband shall be the legal guardian of his minor wife and father of his minor children including widowed minor daughters in respect of their person and property.

Where the wife has minor children by a former husband deceased or divorced, she shall be the legal guardian in respect of their person and property.

The 4th Chapter contains Sections 16 to 34. Section 13 recognizes testamentary capacity in a Thiyya in respect of his property and Section 19 provides that if a person dies without making a testamentary disposition which is capable of taking effect he would be deemed to have died intestate. Section 20 to 34. provide for the devolution and distribution of the property of a deceased on in (sic) stacy. Sections 20 to 25 correspond to Sections 32 to 37 of the Indian Succession Act. There is a proviso to Section 26 and it corresponds to and embodies the provisions contained in Section 40 of the Indian Succession Act. There are two parts in Section 23 which correspond to Sections 38 and 39 of the Indian Succession Act and Section 27 to 34 correspond to Sections 41 to 48 of the Indian Succession Act.

The expression ''Marumakkathayam'' is used in the Act only in Chapter v. the heading of which is ''Property of Marumakkathayam Tarwad''. Those words are repeated as the first words in Section 35 which is the only section in the Chapter, and the expression is used to refer to the property belonging to the ''tarwad'', that is all the members thereof, for the purpose of statutorily converting that property into the separate property of their nearest common ancestress. This purpose is achieved by the first part of Section 35 which enacts that.

The property of a ''Marumakkathayam tarwad'' will be considered to have been the property of the nearest common ancestress.

that is, the separate property of that nearest common ancestr as. The consequence of this Provision is to divest tile members of the �tarwad� of all their property which is statutorily consti Luted the separate property of the nearest com mon ancestress of all the members in existence then, which ancestress must, therefore, necessarily he dead at the time of the Act. Need therefore arose for regulating the devolution of the pro perty of that common ancestress and the latter part of S. 35 makes provision therefore by enacting that the said prop will be considered.

to have descended according to the rule of succession contained in Chapter IV and to be partible among the persons so entitled.

Now turning back to Chapter IV, the applicatory sections in this case are those commencing from Section 24 which provides for distribution where there are lineal descendants. The husband of the propositress not being proved to be alive, there is no deduction to be made on account of a share to him u/s 23 which deduction is directed first to be made by Section 24. When either of the spouses survives, the survivor has the first preference to a share under the Act in the estate of the deceased. In default of such a survivor, the rules for distribution of the deceased''s property among his lineal descendants are those contained in Sections 25 and 26. Section 25 provides that the whole property shall devolve upon the child if there be only one or upon all the surviving children equally if there are more. There is a proviso to this section which enacts that:

Provision that if a child shall have predeceased the intestate the lineal descendants of such child shall be entitled to the share which such child would have been entitled to, had the child survived intestate.

Applying Sections 25 and 35 to the facts of the present case, the members of the ''tarwad'' alive at the time of the Act was passed, that is, on 14-12-1107 were, Ithamma and all her children except Krishnan who had died even in the year 1099, that is, 8 years earlier. There is nothing before us to show whether Ithamma''s daughters or any of them had children or grand children. Their common ancestress was Ithamma''s mother. There being nothing to indicate that Ithamma''s mother had any other child, applying Section 35, the entire property devolved upon and belonged to Ithamma as her separate property. The other members of the ''tarwad'' namely, Ithamma''s surviving children lost all the rights in the property on account of this devolution of the property upon Ithamma. Whether for this reason Ithamma and the other members of the ''tarwad'' ceased to be members of the ''tarwad'' and the ''tarwad'' itself was terminated, is a question that arises for consideration.

A ''tarwad'' can exist as a family under the Hindu Law, without there being ''tarwad'' or family property. The question is whether Act 8 of 1107 contemplates the continuance or the coming into existence of a Marumakkathayam tarwad after the date of the Act. As already stated on that date the property of the ''tarwad'' is statutorily constituted the separate property of the common ancestress, the devolution of which is to be regulated by the provisions contained in Chapter IV of the Act. Applying these provisions the consequence might be, though that has not been the case here, that the property might devolve upon all the members of the ''tarwad'', or some of the members of the ''tarwad'' and some other persons who are strangers to the ''tarwad'' excluding some members, according to the facts of each particular case.

A male child of the deceased common ancestress would be a sharer under the Act. If he is alive at the time of the Act he takes his share. If he be not alive, then under the proviso to Section 25 his descendants if there are any would be entitled to the share of the deceased father. These descendants would not be members of the father''s ''tarwad''. In this way, there might be any number of persons outside the ''tarwad'' who could come in for share claiming descent from the common ancestress. It may happen that the common ancestress of the members at the time of the Act may have died many years ago leaving a large number of children with descendants in the male and female lines of whom those in the female line would only be members of the ''tarwad'' and all the rest would be strangers to it.

Persons who become entitled to the property by applying the provisions of Chapter IV on the date of the Act may be members of the ''tarwad'' and strangers to it, all of whom cannot constitute a ''tarwad''. They would be a group of co-owners each having a defined interest in the property which is partible among the persons so entitled. When the persons who are entitled do not all belong to a ''tarwad'', partibility exists under the ordinary law because every co-ownership property is partible among the co-owners. Even in a case where the persons who become entitled u/s 35 constitute all the members of the ''tarwad'', and none also. Section 35 renders the property partible among them.

There is only one portion of Section 35 relating to partibility and it is the last part of that section which says "and to be partible among the persons so entitled." No distinction having been made between partibility in the various kinds of cases that may arise, it is clear as the intendment of the Legislature must be the same in all cases, that the tenure in which the members of the ''tarwad'' even in a case where all of them and they alone are entitled would be that of co-owners. It is only in a case where the heirs determined u/s 35 of the deceased common ancestress by applying the provisions of Chapter IV are all the members of the ''tarwad'' and none else that the question as to the tenure whether co-ownership or otherwise will arise. When the property descends upon some alone of the members of the, ''tarwad'' the tenure must be necessarily co-ownership because, some alone of a natural unit cannot hold property within the incidents of ''tarwad'' property.

The Act contains no trace of any of the features of a ''tarwad''. There is no reservation made in the Act that in respect of matters not covered by it, the ''Marumakkathayam'' law and usage will continue to apply to the parties. Such a reservation is seen made in statutes relating to ''Marumakkathayee''. Not that such a reservation is necessary but its absence is significant where the existence of a ''tarwad'' itself is the question and as its absence is indicative of the intention of the Legislature not to recognise a ''tarwad'' after the Act. The Act therefore liquidates not merely ''tarwad'' property but the ''tarwad'' altogether. There are other indications afforded by the Act itself leading to this conclusion. A Thiyya male or female is entitled to contract a conjugal union ''with a Thiyya or other famale or male'' u/s 5 which defines marriage. There is no limitation as to the partner except that of belonging to the other sex and of consanguinity and affinity and of the prescribed ages 18 and 14 for the male and famale respectively.

This provision is in striking contrast with those contained in every one of the other enactments which in various ways limit the party with whom conjugal union can be had. Some statutes limit the competency to the particular caste, Ors. to the particular and higher castes and some extend the competency to every member following the Hindu religion.'' In Act 8 of 1107 there is no such limitation. A marriage between a Thiyya male or female with a non-Hindu, say a Christian or a Muslim, would be a valid marriage. What would be the religion of the children born to a Thiyya female out of such a union will be a question but it cannot be claimed that the issue will be a Hindu. The children of such a connection cannot therefore form members of a ''tavazhi'' with their mother, assuming without deciding that the mother will continue to be a Hindu after such a union.

Section 5 of the Act is in effect and substance the same as Section 3 of the Cochin Civil Marriage Act, 21 of 1110 which provides that marriages can be celebrated under the Act between persons irrespectively of caste or creed under certain specified condition and one such condition is that the parties must not be related to each other in any degree of consanguinity or affinity which would, according to any law to which either of them is subject, render a marriage between them illegal and the first proviso to which enacts that:

No such law or custom, other than one relating to consanguinity or affinity, shall prevent them from marrying.

It is thus clear that Act does not envisage the emergence or contemplate the continuance of a ''Marumakkathayam tavazhi'' or sub-tarwad after its date. Indeed, it does not contemplate the possibility of the existence of a group of persons having community of interest in property on account of any personal law governing them and the ''tarwad'' that existed before and at the date of the Act was liquidated by it. The "table of kindred" which forms a schedule to the Act shows son, grandson and the .great grandson as descendants and the father, grand father, great grandfather and the great grandfather''s father as the ascendants in the direct line and the collateral descendants in the male line of these ascendants within 7 degrees. No female is noted in the schedule of kindred. The essence of ''Marumakkathayam'' which is that the woman is the stock of descent, which is to be in the female line, is avoided by the Act. The result is that the Act tolled the death-knell of the ''Marumakkathayam'' system of inheritance, of ''tavazhi'' and ''tarwad'' then and for ever among the Ehzavas who up to that date followed the matrilineal system of descent.

Both the decisions of the Cochin High Court in - '' 39 Cochin 592 (A)'', and - 40 Cochin 83 (B)'', recognise and accept this to be the effect of the Act. In - ''Mariam v. Karambi'', (A) Koshi J., (as he then was) expressed himself thus:

The provisions of the Act make it clear that ''Marumakkathayam'' is dead to the Thiyya community as a system of law governing them and the Act no less than the history of the legislation embolden us to say that it would be untrue now to call any section of that community followers of Marumakkathayam law.

and Ananthakrishna Iyer C.J., referring to the Act, said in the latter which is this very case that:

The incidents of ''Marumakkathayam law are done away with for the future in such cases and the property of the former ''tarwad'' are - in fact-declared partible among the persons declared entitled. (That is why there are no provisions relating to management, no mention of ''Karnavan'', nothing about right of maintenance, guardianship, marriage expenses etc. which are incidental to a proper ''Marumakkathayam'' ''Tarwad'').

The question then is on whom did the property which thus became the separate property of Ithamma devolve after her death in 1112. Ithamma was governed by Act 8 of 1107 and to determine the devolution of her property, Chapter IV of the Act has to be applied, Section 25 and the proviso thereto which provide that:

Where the intestate has left surviving him a child or children, the property shall belong-to his surviving child, if there is only one, or shall be equally divided among all his surviving children:

Provided that if a child shall have predeceased the intestate, the lineal descendants of such child shall be entitled to the share which such child would have been entitled to, had the child survived the intestate

come up for application. The surviving children are Defendants 1 to 4. of the two sons that predeceased her, Kesavan who died in 1111 did not leave any lineal descendant and Krishnan who died in 1099 did leave lineal descendants who are his children Plaintiffs 1 to 4 with regard to whom the proviso applies and enables them to claim the share which Krishnan would have been entitled to had he survived the intestate (Ithamma).

The circumstance that the entire ''tarwad'' property became the sole separate property of Ithamma on the date of the Act, that on her death intestate the property would descend on her heirs as determined by Chapter IV whose application is enjoined by Section 35 and the result of me application of which is, as stated above, to bring about the state of things which would have existed had Krishnan survived his mother and died immediately after, leaving Plaintiffs 1 to 4 as his legal descendants, governs and concludes the case. This is the principle embodied in proviso to Section 25 which is the same as the one contained in Section 40 of the Indian Succession Act, namely, the principle of representation which enables the Plaintiffs 1 to 4 to get the share of their father in his mother''s property though he predeceased her.

This aspect of the case was not presented before nor was it considered by the learned Judges who passed the judgment and decree sought to be reviewed. Had it been considered their conclusion would surely have been the opposite of what they reached. The aspect in which the case was presented before the learned judges and considered, by them was only as regards ''Krishnan''s right in the tarwad property as a member of the tarwad'', and the controversy between the contending parties as stated in the judgment is this:

On behalf of the contesting Defendants, it was urged that on the death of Krishnan his interest in the ''tarwad'' property lapses to the ''tarwad'' and neither his wife nor his children could lay any claim to any ''tarwad'' property on a proper construction of the Thiyya Act, 8 of 1107. On the other hand, learned advocate for the Plaintiffs-Respondents contended that the Act on its proper construction ''preserved Krishnan''s right in the tarwad properties'', that the said rights could be worked out in a partition suit according to the shares fixed by the Act and that his children would be entitled to the said rights.

The controversy was whether Krishnan''s right in the ''tarwad'' property terminated on his death or whether notwithstanding the fact that on his death his interests, whatever they were, lapsed to the other members of the ''tarwad'' who alone thereafter became the owners thereof to the exclusion of Krishnan''s heirs or whether the Act preserved Krishnan''s rights in the ''tarwad'' properties which should be enforced by his children. Krishnan''s right ''qua'' a member of the ''tarwad'' and ''qua'' ''tarwad'' properties was the only matter that was placed for the court''s consideration and that was the only matter considered. If this is the controversy its solution contained in the judgment of the Full Bench in the Cochin High Court is correct and unexceptionable.

But the question really is not whether Krishnan''s rights in the ''tarwad'' property were preserved after his death, for the benefit of his wife and children. The Act does not preserve any rights at all- On the other hand the Act by the proviso to Section 25, preserves Krishnan himself until after the death of his mother in 1112, considers that he survived his mother, and that he died only soon after so as to enable his lineal descendants, Plaintiffs 1 to 4 to claim their father Krishnan''s share in the separate property of Ithamma as one of her children. The claim to a share is not a claim to any interest in the ''tarwad'' property ''qua'' ''tarwad'' property nor is it a claim of Krishnan in the property ''qua'' a member of the ''tarwad''. There was no more ''tarwad'' and. no more ''tarwad'' property as after the Act, 8 of 1107 came into force.

The Act effected a statutory metamorphosis and operated to convert the ''tarwad'' property into the separate property of Ithamma. The claim, therefore made by the Plaintiffs 1 to 4 is not to. a share in the property as ''tarwad'' property but a claim to share in the property which was, no-doubt, ''tarwad'' property but which became the separate property of Ithamma by virtue of the Act which provided for a predeceased son''s lineal descendants to claim the share that the predeceased son would have got had he not predeceased. The learned Judges say at page 86:

Krishnan was not alive either in 1107 or 1112; in the facts and circumstances of this case, it seems to us that it could not be successfully contended that Krishnan was given by the Act, rights which on the death of Ithamma in 1112 would enure to the benefit of his wife and children. The Act prescribes a rough and'' ready mode of ascertaining the members of the ''tarwad'' entitled to the ''tarwad'' properties and of the share each would take; but all that relates only to persons who were members of the-''tarwad'' at the time". - ''40 Cochin 83 atp-83 (B)'', and of paragraph 4.

These observations are clearly the result of inadvertence to the provisions contained in Section 25 and the proviso thereto of Act 8 of 1107. Those provisions are clear and unambiguous in favour of the Plaintiffs. The result therefore is that Plaintiffs 1 to 4 are entitled to claim the share of their father Krishnan which is a l/5th in the property which the ''tarwad'' possessed when Act 8 of 1107 was passed and which thereupon became the separate property of Ithamma and which continued to be hers at her death in the year 1112 and the suit is maintainable for claiming that share. So far as Plaintiff 5 is concerned, she is not entitled to claim any rights because her marriage with Krishnan was dissolved by the husband''s death in 1099 and Section 3 of the Act does not confer any right on a party to a marriage which is dissolved before the date of the Act.

The question then is whether the above error in the judgment is a ground for review. Order 47, Rule 1, CPC provides ''inter alia'' that an error apparent on the face of the record'' or any other sufficient reason would constitute a ground for review. The omission of the Court, to advert to a specific and material provision namely Section 25 of the Act (8 of 1107) would,, in our view, come within the ambit of ''error apparent on the face of the record'' and would also be "other sufficient cause'' within the meaning of this rule. The failure to apply the rule of Hindu Law according to which an agnate succeeds as heir in preference to a sister''s son was held by the Madras High Court in Mudlapur Murari Rao and Others Vs. Balavanth Dikshit and Another, to be an error which would be a ground for review. In - ''Sir Hari Sankar Pal v. Anath Nath'' AIR 1949 P.C. 106 (Q) the Federal Court observed as follows:

There are no materials in the record to show that any point under Order 41, Rule 33, CPC was raised before the learned Judges when they heard the appeal. The judgment, at any rate does not throw any light on that point. The application for review has not been printed in the paper book and we cannot ascertain what exactly were the grounds put forward in support of the same. The subsequent order made on the application for review is of a summary character and gives no indication of the reasons which induced the learned Judges to reconsider their previous decision. From such materials as we have got, we are bound to say that in fact there was an omission on the part of the Court to consider the clear provision of Order 41, Rule 33, CPC when the original judgment was passed; and such omission which appears on the face of the judgment, would constitute a sufficient ground analogous to those mentioned in Order 47, Rule 1, CPC and The Court was not incompetent to reconsider the matter if it so desired.

We therefore grant the review applied for and dismiss the Civil Revision Petition. We hold that the suit is maintainable at the instance of Plaintiffs 1 to 4. Plaintiff 5 cannot maintain the suit as she has no claim. Defendant 4 who has been allowed to continue the suit by the order in C.M.P. 94/1123 will have to be content with retaining her position as Defendant 4 in the case and her transposition as Plaintiff which was ordered, should not be carried into effect because that procedure was asked for and allowed on the ground that no one of the Plaintiffs who brought the suit could maintain it and that if, in a suit for complete partition a situation arises when there is no Plaintiff to conduct the suit, a Defendant who is a sharer can be transposed as a Plaintiff. Order 1, Rule 10(3), CPC prohibits the addition of a Plaintiff without the consent of the existing Plaintiff. This prohibition is general and applies to the addition of a Plaintiff by transposition from the array of Defendants except in cases where a Defendant ought to have been originally a Plaintiff. Plaintiffs 1 to 4 can and are there to conduct the suit and they do no not consent to Defendant 4 being brought in as a Plaintiff with them. Further, there is no need to transpose Defendant 4 as a Plaintiff as this is a suit for complete partition and every sharer is essentially a Plaintiff albeit arrayed as a Defendant.

In view of the novelty and difficulty of the questions involved, we consider it proper to direct the parties to pay themselves their respective costs throughout.

Govinda Pillai, J.

I agree to the review-petition being allowed, to restore the civil revision petition to file and then to hold that the suit by Plaintiffs 1 to 4 for a share in the plaint property is maintainable.

Since one of the learned Judges who decided the revision petition was not attached to the Court when the review application was filed, the remaining two Judges were competent to hear the same and to order the issue of notice. Within six months of the presentation of the review application, the two learned Judges who ordered notice ceased to continue attached to the Court. The third Judge who was not attached to the Court when the review application was first heard, rejoined duty, and he along with Anr. Judge ordered for the posting of the petition before a Full Bench. Later on he too ceased to be attached to the Court, and so this petition was posted before us. In the above circumstances we are competent to hear the review application.

While the revision petition was disposed of by the three learned Judges, they referred to Section 35 of the Cochin Thiyya Act 8 of 1107, and held that.

the property of a Marumakkathayam tarwad has notionally, to be considered to have been the property of the nearest common ancestress and to have descended according to the rule of succession contained in Chapter IV and to be partible among the persons so entitled.

The property involved in this case belonged to the tarwad consisting of Ithamma and her children one of whom was Krishnan, the father of Plaintiffs 1 to 4. Krishnan died in 1099. The Cochin Thiyya Act came into force in 1107 and Ithamma died in 1112. Their Lordships expressed themselves thus as regards the rights of Plaintiffs to the plaint property:

Prima facie and in the absence of clear indications to the contrary in the Act, Krishnan having died many years prior to 1107, it is difficult to understand what rights anybody could claim on Krishnan''s behalf or through him by the enactment of the Thiyya Act in 1107.

Their Lordships in making this observation which induced them to hold that the suit by Plaintiffs 1 to 4 is not maintainable, had evidently overlooked the proviso to Section 25 appearing in Chapter IV of the Act. The Section and the Proviso for purposes of reference are quoted below.

Where the intestate has left surviving him a child or children, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children:

Provided that if a child shall have predeceased the intestate, the lineal descendants of such child shall be entitled to the share which such child would have been entitled to, had the child survived the intestate.

The devolution of property is controlled by Section 20 which runs thus:

The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter.

In Section 17(a) it is provided that for the purpose of succession there is no distinction between those who are related to a person deceased through his father and those who are related to him through his mother.

The above provisions and the bearing of the same in the case before them were not considered by their Lordships. In such cases a review can be entertained. In -''AIR 1949 P.C. 103 (Q), it was held thus:

That a decision is erroneous .in law is not certainly no ground for ordering review. If the Court has decided a point and decided it erroneously the error could not be apparent on the face of the record or even analogous to it. When, however the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way that may amount to an error analogous to apparent on the face of the record sufficient to bring the case within the purview of Order 47, Rule 1, Code of Civil Procedure.

In the case considered there, it was evident that there was an omission on the part of the Court to consider the clear provision of Order 41, Rule 33, CPC when the original judgment was passed; and such omission, it was held, which appears on the face of the judgment would constitute a sufficient ground analogous to those mentioned in Order 47, Rule 1, CPC and that the Court was not incompetent to reconsider this matter if it so desired.

Applying the above principle, the review is entertained and allowed. The order passed in revision is set aside.

The succession opened with the death of Ithamma in 1112. She had then Defendants 1 to 4, her children surviving and Plaintiffs 1 to as her heirs. The right of Plaintiffs 1 to 4 to 4 the children of a predeceased son Krishnan claim a share arose only with the death of Ithamma after the Cochin Thiyya Act came into force. They are entitled to claim the share which Krishnan would have got had he been alive at the time of Ithamma''s death. If Krishnan were alive then, he would have got one-fifth of the plaint property, for Anr. son of Ithamma by name Kesavan had died in 1111 leaving no lineal descendants. Thus, it is held that the suit by Plaintiffs 1 to 4 is maintainable. The consequential order as regards the transposition of Defendant 4 as Plaintiff will follow as directed in the order of my learned brother Subramonia Iyer, J.

Sankaran, J.

I am also in agreement With the order proposed by my learned brOrs. on C.M.P. No. 232 of 1124. In disposing of this petition for a review of the order passed on C.R.P. No. 93 of 1123 by the Full Bench of the Cochin High. Court, the two points that call for decision are (1) whether this Full Bench, consisting of Judges none of whom had anything to do with the order sought to be reviewed, has jurisdiction to hear and dispose of the review petition on its merits and (2) whether the ground urged is proper and valid so as to sustain the review and the consequent interference with the prior order on C.R.P. 93 of 1123.

The question of jurisdiction has to be examined in the light of the provisions contained in Rule 5 of Order 47, CPC The prohibition contained in this rule against other Judges from hearing the application for review can come into operation only in cases where all or any of the Judges who passed the decree or order sought to be reviewed continued attached to the Court at the -time when the application for a review of such decree or order was presented and were not or was not precluded by absence of other cause during the next six months'' period, from hearing such application. The order which is the subject-matter of the present review was passed on 29-2-1124 by a Full Bench consisting of Sir C.V. Ananthakrishna Iyer, C.J. and Govinda Menon and Paul Mampilly JJ.

The application for review was presented on 21-6-1124. By that time Govinda Menon, J. had been appointed to a special duty unconnected with the work in the High Court and in his place in the High Court an acting Judge had been appointed. Ananthakrishna Iyer, C.J. and Paul Mampilly, J., were attached to the High Court on the date of the presentation of the application for review, but both of them ceased to be Judges in Mithunam 1124. Thus, they were not available for the six months'' period specified in Rule 5 for hearing and disposing of the application for review.

The next aspect to be considered is whether Govinda Menon, J. was attached to the Court when the application for review was presented and was not precluded by absence or other cause during the next six months, from hearing the application. He was not functioning as a Judge of the Court when the application for review was presented. He had already taken up an entirely different and independent work. No doubt he was retaining his lien as a Judge of the High Court. But the mere retention of such lien is not what is contemplated by the expression ''continues attached to the Court used in Rule 5. Only when the Judge is available to perform his normal duties as a Judge can it be said that he continues attached to the Court. That this is the real meaning of the expression as used in Rule 5 is apparent from the succeeding words.

and is not precluded by absence or other cause for a period of six months next after the application, from considering the decree or order to which the application refers.

These words clearly indicate that unless the Judge is precluded by absence or other cause of a like nature, the Judge must be in a position to hear the application and that then only can he be said to be continuing, attached to the Court. So long as Govinda Menon, J., was on special duty and there was Anr. acting Judge in his place in the High Court, it is obvious that Govinda Menon J., cannot be said to have been continuing attached to the Court when the application for review was presented, the further question whether he was not precluded by absence or other cause for a period of six months next after the application, from hearing the application, is of no significance. As a matter of fact he rejoined duty as a Judge of the High Court only in ''Edavom'' 1124 and before the application for review could be heard he proceeded on leave preparatory to retirement. Thus, it is clear that the conditions laid down by Rule 5 of Order 47 are not satisfied in the present instance so as to deprive this Full Bench of the jurisdiction to hear the application of review. In the particular circumstances of this case this Full Bench has jurisdiction to hear the application on its merits.

The next aspect to be considered is whether there is a proper ground to justify a review of the prior order passed on C.R.P. 93 of 1123. The ground urged is that in passing that order the learned Judges had overlooked the material provision of law governing the question raised in the C.R.P. The question to be decided was whether the Plaintiffs'' suit for partition and recovery of the share of their deceased father, Krishnan, in the plaint properties could be maintained. The parties are admittedly governed by the provisions of the Cochin Thiyya Act (Act 8 of 1107). The properties involved in the suit belonged to the ''tarwad'' of one Ithamma and her children. This Ithamma had six children of whom one was Plaintiffs'' father Krishnan who died in the year 1099. Another son of Ithamma was Kesavan who died in the year 1111 leaving no issue to succeed him. Ithamma herself died in the year 1112 leaving Defendants 1 to 4 as her surviving children.

On the strength of Section 25 of the Cochin Thiyya Act, the Plaintiffs have claimed partition and recovery of the share which their father Krishnan would have got had he been alive when Ithamma died in the year 1112. The sustainability of this claim has to be decided primarily on the basis of Section 25. Since the properties originally belonged to the ''tarwad'' of Ithamma, the devolution of these properties on the death of Ithamma, has to be determined in accordance with Section 35 of the same Act, read with Section 25. The prior order on C.R.P. 93 of 11123 proceeded on the basis that these properties retained the character and incidents of properties belonging to a ''Marumakkathayam tarwad'' even at the time of Ithamma''s death in the year 1112 and accordingly it was held that her son Krishnan who died in the year 1099 could not be deemed to have had become entitled to any separate share in these properties which could be claimed by his sons who are the present Plaintiffs.

Even though Ithamma and the other members of her ''tarwad'' were originally governed by the Marumakkathayam Law, the position was completely altered with the passing of the Cochin Thiyya Act, Act 8 of 1107. Thereafter these parties are to be governed by the provisions of the Act in all matters relating to marriage, succession and partition. This position is made clear by the preamble itself of the Act Among the several sections of the Act, the solitary section which refers to a ''Marumakkathayam tarwad'' is Section 35 contained in Chapter V. All the essential features of a ''Marumakkathayam tarwad'' and of the properties belonging to such a ''tarwad'' have been completely done away with by the enactment of this section.

The section lays down that the property of a ''Marumakkathayam tarwad'' will be considered to have been the property of the nearest common ancestress and to have descended according to the rules Of succession contained in Chapter IV and to be partible among the persons so entitled. With the enactment of this section the characteristic feature of joint tenancy with the necessary incidents of survivorship, disappeared completely in reject of properties of Thiyya ''tarwad'''' and for purposes of partition and succession such properties have notionally to be considered as the separate properties of the nearest common ancestress. Section 35 has been deliberately so worded as to make the statutory change thus made in the character of properties belonging to Thiyya ''tarwads'' retrospective in its effect.

As per the section those properties have to be treated as the separate properties of the nearest common ancestress and to have descended as such on her successors in accordance with the rules of succession enunciated in Chapter IV of the Act. Section 17 contained in Chapter IV lays down that in the matter of such succession there should be no distinction as between those claiming through the sons and daughters of the deceased. The changes thus effected by the Act have been drastic that no one of the characteristic features and incidents of the ''Marumakkathayam'' Law was allowed to survive and govern the Thiyyas of Cochin who were followers of the customary Marumakkathayam Law.

When Ithamma''s son Krishnan died in the year 1099. he was undoubtedly a member of an undivided ''Marumakkathayam tarwad'' and as such he left no separate share in his ''tarwad'' properties which could devolve on his children. But that does not necessarily mean that his children cannot get the benefit of the rights conferred on them by Section 25 read along with Section 35 of the Thiyya Act which was enacted in the year 1107. As already pointed out, the effect of Section 35 was to notionally change the character of the properties of Ithamma''s ''tarwad'' as her separate properties for purposes of succession and partition. The inevitable result has been that on the date of Ithamma''s death, all her children, deceased and surviving, could claim a share in those properties by virtue of Section 25 of the Act. While passing the prior order on C.R.P. 93 of 1123, the learned Judges had completely lost sight of the provision to that effect, contained in Section 25. This is obvious from the following observations contained in that order:

The Act was passed in 1107. Ithamma died in 1112. ''Prima facie'' and in the absence of clear indications to the contrary in the Act, Krishnan having died many years prior to 1107, it is difficult to understand what rights anybody could claim on Krishnan''s behalf or through him by the enactment of the Thiyya Act in 1107.

It is clear from these observations that those learned Judges themselves would have come to a different conclusion if they were aware of the clear indications contained in the Act regarding Krishnan''s right to claim a share as the son of Ithamma. For claiming such a share it is not necessary that Krishnan should have been alive at the time of Ithamma''s death. Even if he predeceased her, his lineal descendants could claim the share which he would have been entitled to, had he survived Ithamma. Such right is conferred by the Proviso to Section 25 which states.

that if a child shall have predeceased the intestate, the lineal descendants of such child shall be entitled to the share which such child would have been entitled to, had the child survived the intestate.

It has to be remembered in this connection that a share is to be thus set apart to Krishnan not as a member of his ''tarwad'', but as a son of Ithamma who, by virtue of Section 35 of the Act has to be notionally considered to have held her ''tarwad'' properties as her separate properties'', for purposes of succession and partition. It; follows therefore that the suit by the present; Plaintiffs for partition and recovery of the share which Krishnan would have got in the plaint properties had he been alive at the time of Ithamma''s death, is maintainable and the prior order; to the contrary passed on C.R.P. 93 of, 1123 has to be reversed. If the learned Judges had passed that order after adverting to Section 25 of the Thiyya Act and after duly considering its effect also, their decision could only be said to have been erroneous or wrong in law.

Such an erroneous decision could not be interfered with by way of review for the obvious reason that it cannot be said that there has been any error apparent on the face of the record or even analogous to it. The position would be the same even if in arriving at such a decision the learned Judges had overlooked or misconstrued certain aspects which may not be fundamental in themselves. But where in arriving at the decision the Judges had failed to advert to or to apply their minds to a provision of law which really governs the matter, it has to be said that there has been an error apparent on the face of the record or at least analogous to it, so as to attract the jurisdiction for review conferred by Rule 1 of Rule 47, CPC Undoubtedly there has been such an error in respect of the order passed on C.R.P. 93 of 1123 justifying a review and reversal of that order by this Full Bench.

The application for review is therefore allowed.